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November 16, 2012

10 Rules for Dealing with Discovery Bullies

All lawyers have encountered the dreaded “discovery bully.” In a recent _ Sound Advice podcast from the Section of Litigation, two lawyers from Armstrong Teasdale, Jennifer Hoekels and Joan Archer, provided 10 rules to help deal with what can be a frustrating situation.

“Bullying is something that our children often face, but little did we know that as adult attorneys, we would also run across a number of folks who exhibit the same kinds of bullying characteristics,” says Archer, a partner at Armstrong Teasdale in Kansas City, Mo., and co-chair of the ABA Pretrial Practice and Discovery Committee. “Bullying in discovery comes in a variety of forms. Sometimes it’s abusive requests for production. Other times it’s the behavior of the opposing counsel in depositions.”

No matter what the form, Archer says, view the situation as one you can turn into a strategic advantage by following the rules.

Rule No. 1: Abide by the golden rule. “The most important rule for dealing with bullies is do unto others as you would have others do unto you,” Archer says. “Simply ask yourself how you would like to be treated and most choices become obvious. Even though your opponent is acting like a jerk, should you give them the extension to respond to discovery? Or perhaps opposing counsel did a poor job answering interrogatories. Does that mean you should follow suit and give counsel the same or rise above and do what you believe is professionally necessary?”

In many scenarios, abiding by the golden rule makes the most sense because at the end of the day “you’re going to create a better impression in front of your judge and you’re also going to be providing the most professional representation possible,” Archer says.

Rule No. 2: Take five. “As angry as you might be, resist the temptation to respond immediately, while in the heat of battle,” says Hoekels, of Armstrong Teasdale’s St. Louis office and the programming subcommittee of the ABA Woman Advocate Committee. “Always assume that your emails and potentially even voicemails will be attached to a court pleading in the future.

“Do judges like things written with a harsh, accusatory tone, or do they prefer a more professional approach?” asks Hoekels. “Do your clients want you to be brash or calm, cool and collected? Many times a good night’s sleep can change one’s attitude about a dispute and ultimately lead to a responsive communication that infinitely more productive in the long run.”

Rule No. 3: Document, document, document. Keep good records documenting all phases of your discovery efforts, Archer says. “In today’s day and age, we are all inundated with emails, and the last thing we often want to do is make a memo or take notes or do anything else that we have to write or create because we are so overwhelmed,” she says. “But you may have to demonstrate to the court and your client the steps you’ve taken in looking for documents and what you’ve done in communicating with witnesses and, most important, how you’ve dealt with opposing counsel.”

Good record-keeping becomes important when a dispute comes to a head and “you may not recall the details anymore,” Archer says. “Have you been diligent, thorough and cooperative? Take a moment and reflect on that, and if you have been, now you need to be in a position to prove it.”

Rule No. 4: Don’t be afraid to give a little. “Not every battle is going to cost you the war,” Hoekels says. “So much discovery time, money and effort is wasted on trivial points. Think about the small things that you can compromise on and save your energy for those disputes that actually matter.”

What matters? “Discovery that leads you to evidence you would actually use in a summary judgment motion or to present at trial,” she says.

Rule No. 5: Always be prepared. “When you’re prepared and you’re armed with the facts, you’ll be better able to decide whether any given dispute really matters or whether it might be one you can give on,” Archer says.

Rule No. 6: Don’t be paranoid or insecure. “It’s so easy to develop a bunker mentality and think that every opposing counsel hates you, thinks you’re not smart, thinks they’re better than you,” Hoekels says. “Many opponents fuel one’s paranoia through constant bullying.”

Discovery practice is a lot like being back on the elementary school playground, she says. The kids who bully you often do so because they’re insecure, not because they’re truly better than you. “If you let them believe you’re inferior, they win, and you’ll undoubtedly act in ways that may not be strategic and in your client’s best interests,” Hoekels says.

Rule No. 7: Don’t let them see you sweat. “Discovery can at times be a bit like a game of chess or Battleship,” Archer says. “Strategic choices must be made. A good soldier in a time of war does not show weakness.

“Bullies develop a feeling of empowerment in the face of others who exhibit a lack of confidence,” she adds. “Act calm, cool and collected, and then your behavior can be intimidating to that bully and cause them to back off because they no longer believe they have the upper hand. The playing field will be leveled, permitting the facts of the case to be what matters again.”

Rule No. 8: Don’t be timid or let yourself be pushed around. “Confidence is important if one is to keep a bully at bay,” Hoekels says. “Early on in the case, present yourself in a manner that’s firm and well reasoned. Always appear confident and calm. The tone for discovery will be set by your behavior at the outset. Bullies often become much more reasonable once they figure out that bullying will not get them the result they desire.”

Rule No. 9: The best defense is often a good offense. Sometimes the best way to avoid bullying is to remain on top of discovery and control the timing of what occurs, Archer says. “If you are well prepared, the pace and content of discovery can be controlled by you,” she says. “Some bullies are busy themselves and will allow you to take control of the discovery process. … In that situation, opposing counsel will have less time available to stir up more unnecessary and costly discovery disputes.”

Rule No. 10: Make sure your discovery objections and motions serve the ultimate purpose of the case. “We’ve all seen situations in which discovery bullies add substantially to the cost of the case,” Hoekels says. “It’s so easy to get pulled into a pattern of responding, arguing and launching counterattacks.”

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